

Inheritance Theft! Can a relative who I’ve excluded from my Will fight for inclusion after I’m gone?

Yes, provided that relative has standing to sue. Any family member (or past beneficiary) who has been excluded from your Trust or Will can fight for inclusion after you die. But to do so they first must have standing. To have standing means they are an heir or prior beneficiary of yours and they have a property interest they will lose under your Trust or Will. For example, a child who is disinherited can sue because if you had no Trust or Will, that child would have received a portion of your estate. But a second cousin, twice removed, cannot sue unless that person would have received something without the newly created Trust or Will.

In other words, not just any relative can challenge your Trust or Will. Instead, it must be a relative of yours that has something to lose under your new Trust or Will. Furthermore, to fight for inclusion in a Trust or Will after you die, the relative must have legal grounds to do so. A relative is not entitled to be included just because he or she is related to you. No one has an absolute right to inherit your property under California law (unless you entered into a contract to leave your estate to someone). Instead, a relative must assert that you either lacked capacity at the time you created the Trust or Will, or you were unduly influenced to do so (or subject to fraud, menace, or duress).

Given these rules, there are a few safeguards you can employ to increase your chances that a fight will not commence after your death.

Independent review

In certain cases, the California Probate Code requires estate plans to be reviewed by an independent lawyer to ensure the settlor has capacity and is not being unduly influenced. This typically occurs where a person wants to leave a gift to his or her care giver. The independent lawyer will meet with the settlor, and then sign a certificate of independent review to confirm that the plan represents the settlor’s intent.

But you can also use a certificate of independent review even when the Probate Code does not specifically require it. By doing so, you are receiving a second opinion, in writing, from a lawyer that the estate plan is being created at a time when you do not lack capacity and are not being unduly influenced.

You can also seek the opinion of your medical doctor immediately before creating an estate plan. Some lawyers frown on this practice because it may indicate that you were worried about your capacity and therefore knew it was a concern. But why not have as much evidence as possible that you are of sound mind before creating a Trust or Will. With that evidence in your file, it will be much more difficult for a relative to fight for inclusion in your estate plan.

Give a terrifying gift

Alternatively, you can provide a monetary gift to incentivize your relative not to fight your estate plan through the use of a no-contest clause. No contest clauses (originally called in terrorem clauses, Latin for “about fear”) are meant to prevent Trust and Will contests. The idea being that anyone who challenges your Trust or Will without probable cause and loses will also lose all inheritance rights under the Trust or Will.

Obviously, if you leave a relative nothing under your Trust and Will and then include a no contest clause, it does not provide much incentive to back down from a fight because the relative has nothing to lose. But if you provide that same relative with a meaningful gift, and also include a no contest clause, then you may have something that works in your favor.

The correct gift amount will vary depending on the size of your estate. But assume that you have an estate worth $2 million. You have a child that you would like to disinherit, but you also know that child is likely to fight your estate plan. Assume further that the child has limited financial means and a gift of $250,000 would be considered a large amount of money to that child. If you gave the child $250,000 and then provided that any Trust contest filed in court will cost that child his gift, then you have created a meaningful incentive against challenging your estate plan. True, you had to give the child some money to create the incentive. But you also protected your plans as to the remaining $1.75 million of your estate, which is a meaningful amount and a valuable protection for the other Trust beneficiaries.

You can vary the amount of the gift, but the point remains that some gift will be big enough to cause the child to NOT bring a Trust or Will contest for fearing of losing the gift.

Don’t worry too much

If you have children and you are leaving your estate to your children equally, then you have nothing to worry about. Any distant relatives simply would not have standing to bring a lawsuit to overturn your Trust or Will, so your plans will be fine (provided you have not made any promises to leave your estate to someone besides your children). If you have no children and want to leave your estate to friends, or charity, or someone other than your family, then there may be a bit more room for concern. But even in that instance, a properly drafted estate plan will help protect your intent.